Capital Punishment Clinic heads back to U.S. Supreme Court for the fourth time in four years

May 26, 2010

The Supreme Court of the United States agreed on Monday, May 24, 2010, to resolve an important dispute among the lower federal courts over the reach of a federal civil rights statute in a DNA evidence case brought by Texas death row prisoner Hank Skinner. This marks the fourth time in as many years that the Supreme Court has granted plenary review in a case in which the Capital Punishment Clinic of the University of Texas School of Law is serving as counsel to a condemned prisoner.

Clinical Professor Rob Owen of the Capital Punishment Clinic, along with lawyers from the firm of Skadden Arps, represents Skinner in his bid to use a civil rights statute (42 U.S.C. § 1983) to gain access to certain evidence from the crime scene for DNA testing—testing Skinner says can prove him innocent. Lawyers for Skinner, who was convicted of a triple slaying, contend that state authorities’ refusal to grant Skinner post-conviction DNA testing violated his rights under federal law.

On March 24, 2010, the high court stayed Skinner’s execution while it considered his appeal. Now that it has agreed to hear the case, the Court will decide whether a habeas petition or a suit under Sec. 1983 is the appropriate vehicle for presenting this type of due process claim.

“We are pleased that the Supreme Court has agreed to hear our client’s appeal,” Owen said. “This decision represents the necessary first step to our eventually obtaining the DNA testing that Mr. Skinner has long sought.”

At the same time, Owen said, the case presents another opportunity for students in the Capital Punishment Clinic to play a substantial role in litigation at the nation’s highest court.

“This is the fourth time in recent years that the Court has agreed to hear a case in which our Clinic was involved, and working on those cases has been among our clinic students’ most memorable and professionally valuable experiences,” Owen said. He added that briefs in the case will be submitted between now and late summer, with the Court expected to hear oral argument in the fall.

Skinner, who has always maintained his innocence, was convicted and sentenced to death in 1995 for murdering his girlfriend Twila Busby and her two adult sons in their home in the Panhandle town of Pampa on New Year’s Eve 1993.

Skinner was arrested at a neighbor’s home about three hours after their bodies were found, with blood from two of the victims on his clothes. While this evidence ties Skinner to the crime scene, toxicological experts say he was physically incapable of committing the murders due to having ingested massive amounts of alcohol and codeine. A lay witness for the prosecution confirmed that just ninety minutes before the crime, Skinner was lying on the living room couch in a stupor, completely unresponsive.

For ten years, Skinner has sought access to certain evidence from the crime scene for the purpose of performing forensic DNA testing that he says could clear him. He has sought DNA testing on vaginal swabs and fingernail clippings taken from Busby at the time of her autopsy, two knives recovered at the home, a hand towel found with one of the knives, a man’s windbreaker jacket found next to Busby’s body, and some human hairs from Busby’s hands. Of these items, only a few of those hairs have been previously DNA tested, and the results of those tests were inconclusive.

After failing to obtain such access though repeated formal and informal requests, as well as two separate state court proceedings under Texas’ post-conviction DNA testing statute, Skinner filed suit against Gray County District Attorney Lynn Switzer in November 2009. Skinner invoked 42 U.S.C. § 1983, alleging that the refusal to grant him access to the evidence under Texas’ DNA testing statute was so arbitrary as to deny due process of law. The district court dismissed Skinner’s lawsuit, and the Fifth Circuit affirmed, both relying on a 2002 decision in which the Fifth Circuit had determined that such an action could proceed only as a habeas corpus petition, not as a civil rights lawsuit.

That legal conclusion, shared by the Fourth Circuit, is at odds with the view of six other federal Courts of Appeals, and that conflict was the basis of the petition for writ of certiorari that Skinner filed with the Supreme Court in February as Skinner v. Switzer, No. 09-9000.